A Kat may look at an Administrative Council: an open letter to the AC

Regular readers of this weblog will by now be well aware that a number of issues concerning the European Patent Office and its governance have featured in many of its recent posts. The members of the blog team look forward to a time when this will no longer be the case, a time when the only sound that emanates from the Office is the quiet purr of an efficient and well-maintained engine that examines, grants, rejects or fine-tunes applications for patents in a manner that engenders confidence among its users, job satisfaction of its functionaries and trust for those who invest in bringing new inventions to the marketplace.  Meanwhile, things are not what they might be.  This being so, Merpel takes this opportunity to write an open letter to the Administrative Council (AC), which has responsibility for supervising the operations of the Office, in an attempt to articulate with the utmost clarity -- and without pointing any fingers of blame in any particular direction -- in the hope that it will help the AC's members to focus with greater facility on the matters that appear to her to be most in need of their attention.  This is what Merpel writes:

Dear Administrative Council,

You are meeting this week at a crucial time in the history of the European Patent Organisation.  There is staff unrest resulting from the ongoing programme of reforms, and the Organisation faces problems concerning the constitutional position of the Boards of Appeal.  The oversight and supervision of the European Patent Office (EPO) is down to you and you alone.  The European and indeed worldwide patent community looks to you to act.

The European Patent Convention (EPC) is drafted with only a two-way separation of powers within the European Patent Organisation between the Administrative Council as the legislature and overseeing body on the one hand, and the EPO headed by the President as the executive agency on the other.  The Boards of Appeal, which must be judicially independent if their decisions are to be recognised by national courts as being compliant with legal norms and fundamental human rights, currently sit in an uneasy constitutional position as being part of the Office, but with their independence legally guaranteed by Article 23 EPC.  The proposal to make the Boards fully autonomous as a third organ of the Organisation has apparently been consigned to the dustbin of good intentions.

The Boards of Appeal, despite not being fully administratively coupled from the Office, have never previously shown themselves to be hesitant in taking decisions that might be administratively unpopular or that might lead to decreased administrative efficiency.

On the other hand, there is growing a fear that the Administrative Council is not effectively independent, despite its constitutional autonomy.  Observers are concerned that you have grown to rubber-stamp the proposals put to you by the President.  In doing so, you may be beginning to fail in the vital constitutional task which has been entrusted to you.

No doubt the drafters of the EPC never doubted that a Council made up of, effectively, the competitors of the EPO would rigorously examine and oversee its management.  Perhaps they did not foresee the current situation in which many national patent offices would become so reliant on revenue deriving directly or indirectly from the EPO.

You have more information at your disposal than that which is available to you from a fictional feline, but Merpel begs to suggest that you consider all of the following propositions, for which, from the information that she has seen, there are strong arguments.

In relation to the Boards of Appeal (according to proposals here, here and here):

• REJECT the proposal to establish the Board of Appeal Committee (BOAC) to supervise the Boards of Appeal, which would place the Boards under the supervisory oversight of the Administrative Council, thereby tying the judiciary to the legislature, and depriving the Presidium of the Boards of Appeal of most of its functions.

• REJECT the proposal for a career structure which would routinely see Board of Appeal members dismissed after their five-year term without being given employment by the Office or permitted (according to the new proposed conflict of interest rules) from immediately taking the other employment for which they may be qualified.

• REJECT any plan to move the Boards to another location which would inevitably result in the loss of members from an already depleted cadre.

• RESTORE the Boards of Appeal to full manpower as soon as possible

In relation to employees generally

• RESCIND the Strike Regulations which place the possibility to strike or hold a strike ballot at the discretion of the President.

• REFORM the changes to the sick leave and invalidity provisions, which are oppressive to those who are unfortunate enough to require them.

• REFORM the Investigation Guidelines, which are Kafkaesque to most European observers

• RECONSIDER the overall programme of reform to the career structure.  Practically no-one doubts the need for reform to the employment and service conditions of Examiners and other employees, but the speed and style of implementation are causing an unacceptable level of unrest. 

• ENSURE that staff representative numbers are brought back to full strength, as it appears that there are vacancies which the management refuses to fill, leaving staff under-represented on committees whose standing rules require that they should have an equal voice.  

• COMPLY with the judgment of the Court of Appeal of the Hague of 17 February 2015 to provide basic levels of labour rights to staff across the Organisation.

At a time of changes to the governance of the EPO and the career structure of its employees, there needs to be full dialogue with staff representatives, but this seems to have broken down entirely.  Proper consultation needs to re-established as a top priority.  EPO employees are in a particularly delicate position because of their lack of access to domestic welfare services, and this needs to be respected.

Doubtless many of you have been familiar with reform of the administration of the patent offices of your home countries which in many cases have also been difficult and painful, and perhaps therefore do not see cause for concern in the current serious degree of industrial unrest in the European Patent Office.  But because of the special and unique position of the EPO, many observers, users, and other stakeholders hope that you will view the present situation with the utmost gravity.

The staff in the EPO look to you for fair conditions of employment. They do not enjoy the same basic protections as national civil servants in your countries, which is why the Court of Appeal in the Hague ordered the EPO to implement some basic changes that would allow the staff union to operate effectively. The EPO has refused to accept that judgment on the dubious ground that it would need to have regard to every labour law in each of the 38 member states. The EPO has employees in just four countries, all of which are EU member states, and it is not beyond the wit of an organisation of the EPO's size to operate in compliance with the laws common to those four countries. This would go a long way to restoring the EPO's reputation as regards treatment of staff.

Even in those areas where the staff were always intended to have a strong voice, such as on committees like the GCC, their representative numbers have been depleted and the duly elected replacements have not been recognised by management.  It is not apparent why this should be so, and it leaves the staff in what looks like an engineered minority when discussing matters that affect them. There are elected alternates, but it appears that they are neither notified of such meetings nor admitted if they try to take an empty seat in place of an absent/resigned member. The healthcare reforms were voted through at a meeting where the staff were at such a disadvantage.

Concerning the ongoing disciplinary matter relating to a member of the Boards of Appeal, it is hoped that there will be an outcome which is seen by all to be fair and just.

It is the function of the Administrative Council to hold the President and senior management of the EPO to account, and Europe is watching to see signs that you are doing this.  Members of the EU are also watching with concern since the EPO is crucial to the future success of the Unitary Patent.

Please let us see some sign that you are doing the right thing.

Yours sincerely,

Merpel

While a Kat may look at a King an Administrative Council, Merpel believes that AC delegates may also respond to human exhortation, and reminds readers in EPC contracting states that they may find their Administrative Council delegates here.  

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